How and when to present an ineffective assistance of counsel claim

Wednesday, April 17, 2013

Good afternoon to all.

Searching Mind has asked a series of good questions in comments to my article yesterday regarding whether a defendant can raise an ineffective-assistance-of-counsel claim (IAC) on direct appeal. Xena also asked me to discuss the experts I would contact about the case. I will not identify anyone by name, but I will mention the subject matter that I would want to discuss with an expert suitably qualified in that area.

First, let’s take a look at whether an IAC claim can be raised on direct appeal.

I agree with Searching Mind that IAC claims can be raised on direct appeal, if the record unequivocally supports the claim such that there are no disputed material facts and therefore no need to remand the case to the trial court with instructions to conduct an evidentiary hearing to resolve disputed facts. This is equivalent to saying that the DCA can decide the issue as a matter of law on a set of undisputed facts.

This situation does not happen very often. For example, one of the elements of an IAC claim requires a defendant to plead and prove the standard of practice at the time the alleged error was committed by defense counsel. The defendant also must plead and prove that defense counsel violated that standard, that the violation was material and not merely a tactical decision. In most cases, the parties dispute one or more of those issues and the DCA cannot determine whether the defendant has a valid IAC claim by reviewing the transcript on appeal. The answer isn’t there.

Therefore, the rule is the DCA will not review an IAC claim on direct appeal when material facts are disputed, the answer is not in the record, and the disputed facts cannot be resolved without an evidentiary hearing.

Every rule has an exception and the exception to this rule is that the DCA will consider an IAC claim on direct appeal when there is no genuine dispute of material facts and the DCA can resolve the claim as a matter of law.

Now let’s take a look at the defendant’s case and assume that O’Mara does not file a motion asking Judge Nelson to find the defendant indigent and authorize the appointment and compensation at public expense of an investigator and such experts as may be reasonably necessary to assist defense counsel in presenting a defense.

Let’s further suppose that O’Mara does not call any expert witnesses and the jury convicts the defendant.

Can the DCA decide an IAC claim on direct appeal?

Answer: Probably not, because an evidentiary hearing would have to be conducted to determine if the outcome of the trial probably would have been different, if the defense had presented the testimony of certain expert witnesses, who I am assuming would exist for the purpose of this demonstration. The identities of those witnesses and their testimony would not become known unless habeas counsel did what O’Mara did not do.

Under this set of circumstances, the IAC claim would have to be raised in a state habeas petition after the conviction was affirmed on direct appeal. The habeas petition would be granted, if we assume for the sake of argument that the standard of practice would have been to obtain an order of indigency appointing experts at public expense, that expert testimony would have materially supported the defendant’s claim of self-defense and the defendant probably would have been acquitted if the experts had testified.

At this point there are too many unknowns to predict an outcome, except to say that a murder conviction appears likely, given the evidence that has been released to the public.

Now, let’s tackle Xena’s question about which experts I would consult, if I were representing the defendant.

I would consult with a pathologist to review the autopsy report and the AME’s findings regarding the entry wound, trajectory of the bullet, and the distance between the muzzle of the gun and the entry wound when the shot was fired. I also would discuss what the evidence shows relative to the positions of the victim and the shooter when the shooter fired the fatal shot. I also would want to know if the pathologist disagrees with anything in the autopsy report and whether the defendant’s statement to police describing the shooting is consistent or consistent with the autopsy report. Finally, I would ask about the length of time the victim would have remained conscious after the shot, whether he could have said anything, and positional asphyxiation as a contributing factor to cause of death.

I would want to consult with a firearms expert to discuss the weapon used, the fatal shot, and whether the defendant’s statement about how he fired the fatal shot is consistent with the evidence. I also would want to review the crime lab analyst’s report and bench notes regarding the bullet holes in the sweatshirts and whether they align with the entry wound.

I would follow Lonnie’s advice and look for a kinesiologist or someone in a related field to discuss the relative positions of shooter and victim when the fatal shot was fired.

Next up, I would want to discuss the defendant’s injuries with a trauma surgeon, blood spatter expert, and DNA expert.

Consulting with an expert on GPS tracking would be high on my list as would consulting with an audiologist about identifying the person who uttered the shriek.

I probably also would have the defendant undergo thorough psychological testing because I suspect he may suffer from some kind of organic brain disorder that may affect perception and functioning.

I probably would consult with other experts, but that is all that comes to mind right now. This post has reached 1,000 words, so I am going to wrap it up and reserve further discussion for the comments.

The steps I have described here regarding consultations with experts in a case like this are what I would consider to be the standard of the profession. A failure to pursue and document this line of inquiry would fall below the standard and constitute ineffective assistance of counsel. To establish a valid IAC claim, however, the defendant would still have to establish that the result of the trial would probably have been different if counsel had done these things, discovered material evidence in his favor, and presented it at trial.

Writing articles every day and maintaining the integrity and safety of this site from people who would like nothing better than to silence us forever is a tough job requiring many hours of work. If you like this site, please consider making a secure donation via Paypal by clicking the yellow donation button in the upper right corner just below the search box.

Post navigation

228 Responses to How and when to present an ineffective assistance of counsel claim

Latest rumours floating in ether Foggagge may go the tempory insanity clausel
Pleading the adhd and other mental disorders low iq an general stupidy makes him imcopetent.

An former police cheif B Lee should never have told him he had a future in LE.
As its obvious he is ….special…in the politicy correct way of saying retarded.

Thus sending simple foggagge on the path to self destruction an Trayvons MURDER…
Or I supponce if not temp insanity possably permament Insanty whatever its all Former Cheif B Lees fault he is the one whom should be the one on trial.

An foggagge should have all charges droped due to his…special condition…An be awarded Former Cheif B Lees pension.
P.S
The person/source of this innerweb rumour is me.

Neither these witnesses nor any other audio experts are on O’Mara’s witness list. How likely is it that O’Mara does not know- and does not want to know what the “hidden information” on the 911-tapes contains? I guess highly unlikely. Could the absence of audio-experts on O’Mara’s list therefore be an indication that the defense knows of the content of that “hidden information” and it’s devastating nature and has opted not to put up a fight on that front?

A lot about O’Mara’s witness list comes across as wired. One of the many examples is the fact that ALL of O’Mara’s experts are State’s witnesses. Might O’Mara actually be expecting the State to make the defense case and get GZ acquitted?

Also, O’Mara listed no one from the Altamonte Family Practice to testify on behalf of his client regarding the broken nose and deadly, deadly blows GZ received from Trayvon.

It’s a sarcastic comment (albeit, the outhousers really believe that literarily). O’Mara’s expert witnesses are State’s witnesses. O’Mara has no other expert witnesses on his list. Unless those State witnesses turn against the State and testify in favor of GZ, this case is over. Maybe O’Mara knows something we don’t know. Who knows.

That’s a gentlemanly way of stating that the presented material may contain BS. Instead we simply note: Caution, the fault tolerance of the material contained herein is unexpectedly high! Or ultra high! Or unbelievably high. Or Astronomically high! 😆

The Shellie docet has been updated as of yesterday’s hearing. I assume the motion to dismiss and Writ of Quo Warranto were declined and that the Writ is another attempt to claim that the warrant for arrest was not valid based on the executive order.

That list shows they have no case, no strategy. It is the same list as the one before they asked for a continuance. Same omissions. Sondra Osterman is mentioned by name, but not Mark. His witness number is on it, but everybody else who subsequently was identified by name is mentioned by name.
They’ve got every person from SPD that “may” have been near the place, but they missed the guy who was responsible for keeping the contamination log.

That is just by looking at the list for a couple of seconds. There is no organization, no planning, no strategy.

Maybe they think their case is so solid they think they don’t need experts? But that would be not real smart if the other side has experts because I believe juries like experts. Also, since MOM said he now had enough for a couple of experts, that indicates he at least at that time intended to have experts. But maybe an expert’s price goes up for this case to a price he can’t afford. IOW, no one wants to touch it? Or maybe it is just some new game he is playing. I haven’t figured out his strategy yet, unless it is to hang GZ out to dry or escape with him to who knows where.

Or maybe MOM believes in him so much he is going to help him and She’lLie escape be a martyr, willing go to prison in order to see that this injustice is not done. LMAO!!!!

Here is a sample of defense’s declarations with regard to funds and expert witnesses:

February 6, 2013

“…The $18,000 raised so far will allow the defense team to secure one of about half a dozen critical experts…”

Feb 19, 2013

“… Nonetheless, in the 3 weeks since we renewed our call for support for George’s defense, we have raised almost $28,000. The majority of these funds remain unspent, and have been held in reserve to pay for necessary experts…”

March 17, 2013

… This leaves $9,940.53 on hand. With most of the fixed March expenses paid, these funds are being regarded as reserves for April expenses. The $16,000 allocated for Experts has allowed us to retain three experts and an investigator, but we have greater need for expert assistance to properly prepare….”

Question

Could it be that the experts O’Mara (claims he) has retained are among those listed by O’Mara as “GZWA” to “GZWOO”?

There are no experts because that is O’Mara’s strategy now. He’ll make a motion in May asking for more time because he has not had the money to hire experts and he can’t go to trial without experts. He’ll ask for time to (a) make money to get the experts; and (b) have the experts review the whole case; and (c) then have the experts write reports and have press conferences; and (d) by then it should be moot whether or not Fogen committed a crime because global warming will have destroyed Florida.

Professor, I still don’t get how you are able to use layman’s language to literarily power through very complex legal matters, explain them in ways understandable to people of all ages and different (academic) backgrounds AND at the same time maintain a high academic value/quality of your work. As I write this, I think of the beautiful story of the Christian Pentecost: ‘the disciples spoke to the crowd and the crowd marveled, because each one heard them speaking in his own language’. “Completely baffled, they said, aren’t all these who are speaking Galileans? And how is it that each one of us hears them in our own native language? Parthians, Medes, Elamites, and residents of Mesopotamia, Judea and Cappadocia, Pontus and the province of Asia, Phrygia and Pamphylia, Egypt and the parts of Libya near Cyrene, and visitors from Rome, both Jews and proselytes, Cretans and Arabs — we hear them speaking in our own languages (…)”. I guess only Professors get to perform this kind of magic these days.

Not really, Rach. Ya know, knowing something and understanding it perfectly is wholly different from making that which you know and understand understandable to others who are not your peers (from the academic/intellectual point of view). So, I disagree with our own Albert this time. Besides, it also is really not about just making it simple. It’s about doing two different thing at the same time: making it simple and maintaining a high degree of academic quality. More often than not the former is lost in the latter and the latter makes the former nearly impossible. It’s also about striking a perfect balance between the two. It takes one of a kind to just do that.

Yes, Einstein understood that there are two reasons for technical language. One is for precision, to precisely describe and communicate one needs a technical language that has precise descriptors. The only reason is speed, having precise descriptors makes it easier to quickly describe that which is to be communicated.

Unfortunately, there are people who will attempt to hide their own ignorance of the subject material, behind an almost impenetrable web of complex terminologies. Using technical terms as a shield rather than a sled to speed things along or a window to display a clear view.

And of course there is “Simplicity is the key to readability” which I used for a high school art project with intensely beautiful but totally illegible calligraphy – but it goes for words as well. If you can’t speak words that people understand, how big and fancy they are means very little.

Professor, I still don’t get how you are able to use layman’s language to literarily power through very complex legal matters, explain them in ways understandable to people of all ages and different (academic)

Hope you do not mind if i spaced it out for you and changed a word or two.

There are people at this moment serving time in prison for murder after they killed someone they were in a fight with. The victims were all unarmed. In nearly every case,except for a handful they started the incident. They either went home grabbed a gun came back and killed someone or they pulled a gun and shot them.

In Trayvon’s case he made no effort at all to hit Zimmerman at all. He simply tried to escape. Zimmerman prevented him from doing so. And killed him in the process. Trayvon was not a thug,nor did he have violent tendencies. He was a typical teenager who didn’t like to fight but he would defend himself if he had to.

TRAYVON BENJAMIN MARTIN MADE NO EFFORT TO DEFEND HIMSELF DURING THAT FINAL CONFRONTATION THAT ENDED HIS LIFE!!!! He simply tried to escape. all the while he was screaming for help he was pleading and crying for his life.

Desperately hoping someone anyone would save him from this creepy guy who had a gun pointed at him, interrogating and terrorizing him. There were no MMA style blows. Trayvon never touched him.

Now there is a possibility people are making fake facebook pages claiming to have known Trayvon and are telling lies about him. Funny how this happens less than 2 months before the trial starts.

These people are the lowest of the low. I do hope they have no children. People like them don’t need to breed. The sad thing is if Trayvon was a white kid and Zimmerman was black they’d want Zimmerman’s head on a platter.

The above post is a very good comment and so true and to the point. I am sick to death, of those B******S in this country who choose to smear this child’s good name in death. why would these white people who see fit to do this, do any and every damn thing they can to hurt Trayvon and his family?

They are all a shame and a disgrace before GOD, while all along claiming to be good christian people. as far as they are concerned, nothing can be further from the truth. they all break the Golden Rule everyday, with the evil thoughts that they put in writing about an innocent deceased child. they are now angry about the little eight year old, who was also killed by a senseless act of violence, holding a sign calling for peace, in the wake of Trayvon’s death. they do not in any way want this kid’s name, brought up with any connection with Trayvon’s.

These people are *IGNORANT* to the core and, they are also some sick evil monsters who will definitely feel the wrath of GOD and, they will most definitely be deserving of what ever punishment he so chooses to met out to all of them.

What these people are doing is wrong and, it’s also hurtful to the family Trayvon left behind. when the time comes for them to meet their maker, I hope that time for them will be as painful and horrible as possible. this is what they deserve and, may they rot in hell for all of eternity.

There are people at this moment serving time in prison for murder after they killed someone they were in a fight with. The victims were all unarmed. In nearly every case,except for a handful they started the incident. They either went home grabbed a gun came back and killed someone or they pulled a gun and shot them. In Trayvon’s case he made no effort at all to hit Zimmerman at all. He simply tried to escape. Zimmerman prevented him from doing so. And killed him in the process. Trayvon was not a thug,nor did he have violent tendencies. He was a typical teenager who didn’t like to fight but he would defend himself if he had to. TRAYVON BENJAMIN MARTIN MADE NO EFFORT TO DEFEND HIMSELF DURING THAT FINAL CONFRONTATION THAT ENDED HIS LIFE!!!! He simply tried to escape. all the while he was screaming for help he was pleading and crying for his life. Desperately hoping someone anyone would save him from this creepy guy who had a gun pointed at him. Who was also interrogating and terrorizing him. There were no MMA style blows. Trayvon never touched him. Even now there is a possibility people are making fake facebook pages claiming to have known Trayvon and are telling lies about him. Funny how this happens less than 2 months before the trial starts.These people are the lowest of the low. I do hope they have no children. People like them don’t need to breed. the sad thing is if Trayvon was a white kid and Zimmerman was black they’d want Zimmerman’s head on a platter. A trip to buy candy and a drink shouldn’t carry the death penalty.

Kelly Im a dough
NUT
As far as computers go an if I can learn or have it explained to me.
ANYONE CAN….
SiMply type whatever an when you wish to create either a space down or a paragraph
PRESS ENTER
And it drops you down to write a lower line hit it twice an the bigger the

There are people at this moment serving time in prison for murder after they killed someone they were in a fight with. The victims were all unarmed.;
.
In nearly every case,except for a handful they started the incident. They either went home grabbed a gun came back and killed someone or they pulled a gun and shot them..

In Trayvon’s case he made no effort at all to hit Zimmerman at all. He simply tried to escape. Zimmerman prevented him from doing so. And killed him in the process. Trayvon was not a thug,nor did he have violent tendencies. He was a typical teenager who didn’t like to fight but he would defend himself if he had to.
. TRAYVON BENJAMIN MARTIN MADE NO EFFORT TO DEFEND HIMSELF DURING THAT FINAL CONFRONTATION THAT ENDED HIS LIFE!!!! ;

He simply tried to escape. all the while he was screaming for help he was pleading and crying for his life. Desperately hoping someone anyone would save him from this creepy guy who had a gun pointed at him.

. Who was also interrogating and terrorizing him. There were no MMA style blows. Trayvon never touched him. Even now there is a possibility people are making fake facebook pages claiming to have known Trayvon and are telling lies about him.

Funny how this happens less than 2 months before the trial starts.These people are the lowest of the low. I do hope they have no children. People like them don’t need to breed. the sad thing is if Trayvon was a white kid and Zimmerman was black they’d want Zimmerman’s head on a platter. A trip to buy candy and a drink shouldn’t carry the death penalty.

Fogen has a perfect IAC claim that can be raised on direct appeal. It stems from conflict of interest with his lawyer and is already in the record.

Fogen is on jailhouse tape saying O’Mara recommended not reporting the $37k then in his Paypal account, effectively implicating his lawyer in subornation of perjury related to his financial status. That call is in the record. O’Mara wrote a letter to Judge Lester in which he denied any knowledge of the Paypal account prior to that bond hearing, and Lester later entered it into the record. Either O’Mara or his client is a liar.

There can be no factual dispute on this issue and it points to a direct conflict between Fogen’s need to appear credible and O’Mara’s need to paint Fogen as a liar. O’Mara stands to benefit when the jury convicts his client because he can then tell everyone Fogen is a proven liar, so we can all ignore what he said in jail.

IAC claims based on conflicts of interest don’t even need to show prejudice — that the lawyer actually did something harmful to the client — because prejudice is presumed when a conflict exists. This is a get-out-of-jail free card for Fogen.

@JUN, I see your point, but it’s actually judicial error that would be challenged on appeal, the error being not acting to remove or resolve a conflict of interest that was apparent in the record. In other words, the judge is partially responsible for ensuring effective assistance of counsel, not just the lawyer and client. So the appeal would be based on Judge Nelson’s failure to address an apparent conflict of interest that was in the record. I think the real reason O’Mara moved to boot Judge Lester was because the judge was moving in that direction. There was no other reason for him to enter O’Mara’s letter into the record when he did.

Angela Not- since it was GZ who stated the apparent conflict of interest, without any additional corroborating evidence, it is only hearsay. I don’t think something that flimsy can be the basis for an appeal.

Hey, cielo62. It doesn’t matter whether Fogen was telling the truth about what O’Mara said or knew. The point is that what Fogen said gave his lawyer a reason to paint him as a liar, to have others question his credibility. That’s in direct conflict with Fogen’s own interests because where he spends the next 25 years of his life depends on his credibility. Thus, there is a major conflict of interest, no matter what the truth is.

You raise a very interesting point. Not sure what the answer is, except that I doubt anything will come of it since they are not witnesses against each other with something riding in the balance (i.e., no charge pending regarding an effort to conceal money with one identified as a witness against the other).

The only trouble with such a theory is, GZ destroyed his own credibility to well beyond the point of no recovery first. Thus MOM can do no worse. So, when it comes to any claim that loss of credibility hampered GZ’s defense, the court will simply put the blame for that on GZ himself.

Thank you, Professor. I have little doubt Fogen will be convicted and sentenced to the maximum. The evidence against him is crushing, and there’s very little room for the type of error that could influence the verdict. So I suspect his new lawyers will have little choice but to go after O’Mara on appeal. It will be interesting to watch his post-conviction efforts, but I do wish there were something Judge Nelson could or would do now to close this door.

Xena, I think it’s the previous Rule, 4.1-7(a)(2): “[A] lawyer shall not represent a client if… there is a substantial risk that the representation of 1 or more clients will be materially limited… by a personal interest of the lawyer.” I’m arguing that O’Mara’s representation of Fogen is materially limited by O’Mara’s own interest in Fogen being adjudged a liar.

The statement his cousin made in that they liked black people if they acted “…white enough…” speaks for itself. Maybe the whole group should have a huge neon sign that says “Hypocritical Lying Racist Bastards” that follows them everywhere just like a “thought balloon” in the cartoons.

Speaking of that, where are all of his black friends and will they appear at his trial and say….”Oh, he’s not a racist….just ask him, and Joe Oliver” These people make one want to vomit, and I’m aiming for Fogens shoes……

Speaking of GZ’s friends, I’ve pondered something for quite awhile. GZ was in college. When I was in college, I made friends with some classmates. For older students such as GZ, they always exchanged phone numbers for networking purposes.

So, GZ attended college for all those years, but there’s not one classmate who has spoken up for him? Not one? It’s almost as if he were invisible in school — or maybe he wasn’t in class often.

I’ll attribute that to the fact that they are smart enough to see Fogen as bad news ads to be avoided. WE don;t know what he said to them that would trigger a stay away response.Word gets round quickly in school.

Yeah….met a few myself……always mommy, daddies or someone elses fault………They may be a contributing factor…………Mommy, Daddy or your 3rd grade teacher didn’t put that gun in your hand to rob the store for meth money….

Ever heard the term “life on the installment plan”?…..Over my life I’ve seen and known a few….in for 3…out for 2…..in for 5……and so it goes….One guy I had work for me only to find he’d been sent to prison…..25 to life…..what for?…petty theft…….with over 20 priors……some people just never learn…

FROM THE CLUTTERED DESK OF Cielo62- no thanks. I already got curly hair. I would say that behavior begins and is reinforced at home. At school, at least at MY school, accepting responsibility is an important life lesson we strive to teach. But parents can, and do, cancel whatever progress teachers can instill.

I believe he’ll be in total fear, but I don’t think he’ll ever come to the realization he’s the one who’s fucked up, or fucked up. I’ve seen many like him, none being a killer, but they can never, ever say…I goofed.

Yes, most normal people keep in touch with at least a few friends from high school or earlier … with undergradute college classmates … with former colleagues … neighbors and all. It’s so easy to do so in an Internet age.

But Fogen’s not normal. And when you consider his MySpace page, does that look like anything other than what a high school dropout would relate to?

CarMax staffers must have been overjoyed when he got the sack, and that’s likely the story for his entire loser life — goodbye, good riddance.

@Trained Observer. I uploaded GZ’s school records; college, when he applied for Vocational Certification for Insurance Agent, and high school. I now have to wait to see if Lonnie Starr will upload on his blog since he’s the “keeper of the records” so to speak.

@MMP, the POS should look at that prison yard with fear as well as feeling the actual fear, of being confronted with someone more of his own level. they are waiting for his fat ass with baited breath. oh sure, he will more than likely be put in PC but, I don’t think he will be there for the duration of his sentence.

Even if he is there for quite some time, if they want him bad enough and they do, someone will find a way to get to his fat ass. all I’ve got to say is, let the chips fall where they may.

The only type of kinesiologists that will help Fogen’s cause are all Conservative Tinfoil Hatters

They are the only ones who will say having your head bashed into hard concrete causes self healing within a couple minutes, 1 to 2 inch scratches, whereby the blood would dry within a minute of bleeding and have no skull fractures

Even Serino Knew he was lying. Serino: Listen to this one.
(playing a witness 911 call and questioning at the same time)
Serino: You’re that voice in the background?
Zimmerman: No, sir.
Serino: That’s you. Are you hearing yourself?
Zimmerman: Um, it doesn’t sound like me.
Serino: It’s you.
(listening to the 911 call)
Serino: OK, right there. He smothered you, correct?
Zimmerman: Yes, sir.
Serino: At what point did he smother you?
Zimmerman: After…
Serino: Was it right before you shot him?
Zimmerman: Right…yes, sir.
Serino: OK. Immediately behind the shot?
Zimmerman: (sigh) I don’t remember.
Serino: OK.
(plays 911 call again)
Serino: I need you to give me an approximate time of when he starts to smother you.
Zimmerman: I don’t know when. It’s hard to…
Serino: That’s you, yelling for help.
Zimmerman: (unintelligible)
Serino: Help me, help me.
Serino: That’s when you shot him. (clears his throat) Can you recall (coughs) excuse me…at what point the suffocation happened? Prior to, prior to you shooting him, he was on you, correct?
Zimmerman: Yes, sir.
Serino: OK. And you were able to reach into your holster.
Zimmerman: Yes, sir.
Serino: OK. You shot him at point blank range. He was on top of you, right?
Zimmerman: Yes, sir.
Serino: OK. And in the middle of all that yelling, nobody came out to help you. And I can’t, I can’t pinpoint where you were smothered. That’s the problem I’m having. And nobody’s saying they saw him smothering you. People are saying they saw you, saw him on top of you, but they didn’t see about the smothering part. So…
Singleton: And when we’re listening to the screaming, doesn’t sound like there’s a hesitation in the screaming. It sounds like it’s continuous, and if someone’s being hurt (imitates scream being muffled) It’s gonna stop. But we don’t hear the, we don’t hear it stop.
Serino: We don’t hear him at all either. Was he being quiet, is he whispering to you or something?
Zimmerman: He’s telling me to shut up.
Serino: Is he calm?
Zimmerman: No, he’s like angry.
Serino: I don’t hear him though. No.
Singleton: Was he shouting it, or was he…
Zimmerman: No, he’s on top of me, and he’s telling me to shut the fuck up, shut the fuck up.
Serino: And then when he saw you had the gun, at that point… Do you think he mighta saw you had a gun when you guys were standing, before he punched you?

@Kelly
I just have to correct one thing because I have a pet theory about a word that is missing from the transcript you posted. When Serino tells GZ, “That’s you…Are you hearing yourself?”, GZ replies (u/c emphasis mine to show the missing word):

“It doesn’t EVEN sound like me.”

IMO, that pesky little adverb creates an important nuance which is NOT in GZ’s favour but it is too long to explain again.

Yeppie, he said that LOUD and CLEAR, “IT DOESN’T EVEN SOUND LIKE ME!” he’s not going to get away with this and, he shouldn’t. he took that child’s life and, he needs to pay for what he’s done.

Hopefully they will screen that jury of six plus alternates good. this is no place for racist bigots and, I hope none lie good enough to make the cut. a person would actually have to have a heart of stone, to lie just so they can get on that jury and free a murderer. I pray that this doesn’t happen because, if he killed once he’ll do it again. he went out and tried to purchase another gun, after he was arrested for murdering Trayvon didn’t he.

I keep waiting for MOM to come out and give a really good excuse as to why Fogen can not stand trial on the date it is scheduled.. Could a medical emergency cause the trial to be rescheduled? Could a missing Fogen cause the trial to be rescheduled? What could cause the trial to be postponed?

I probably also would have the defendant undergo thorough psychological testing because I suspect he may suffer from some kind of organic brain disorder that may affect perception and functioning.

Listening to GZ’s interrogation by Serino on 2/29/12, he stated his memory problem was caused by being ADHD. Serino asked some questions about his diagnosis and medication.

Combining that thought with what is currently happening in the Jodi Arias trial, I was wondering whether the defense or prosecution should have psychological evaluation of GZ or maybe if they already have, particularly since he alleges a medical reason for not remembering the names of the streets causing him to get out of his truck. Also, according to Osterman, GZ misunderstood the intentions of the dispatcher.

He was on TTL but claims he didn’t remember the name of the street, so the numbers on the houses would be just number on some unknown street. The houses on RVC were the backsides w/o numbers on them. However, if he weren’t intent on following, opps, going in the same direction, as Trayvon, he could have gone between the houses on his left (while facing the T) and found number of the house on RVC that he was parked behind. “Sean, I’m parked on the street right behind xxxx RVC.”

he gave the nen guy directions to that street a number alone would be sufficient for precise location after telling them go straight and follow the street, and i dont think for ONE second he didnt know the name of the street, he had given it OFTEN in previous 911 calls….and knew it without hesitation during his drive through…..

He obviously did not need to get an address because he does not give a valid reason to do, and the answers he gives are contradictions to earlier claims

Fogen completely forgot earlier on, he already told Shawn that he parked by the clubhouse, just past the mailboxes, east of the mailboxes, on his NEN phone call

Considering his “address hunt” was really a hunt for the “fuckin coon”, Fogen tried his best to hide it, which is why he contradicted his NEN phone call, by claiming he parked close to the T, and he made this up because, he did not want to seem like he was stalking Trayvon

When you put it all together, since it is a huge contradiction to his NEN, multiples, obviously one of each contradiction is a lie, because he cant be 2 places at one time, because he’s not Michael J Fox from Back To The Future

I am willing to bet the T parking location is a lie, and the GPS records and the NEN phone call will prove that beyond a reasonable doubt

The one lie that blares out is that he was on RVC while still talking to dispatch — went to RVC to get an address, but failed to give the address to dispatch.

That’s the one and only “proof” needed to nail it IMO. Any of the others, i.e. must have known the 3 streets, he could see the house numbers or street name, could have driven round, could have given a house number for them to work it out, etc. etc. etc. are all totally superfluous because that is the one he can never explain, i.e. he was on RVC on the phone with NEN supposedly getting an address but he never gave one. My second best is even had he got an address on RVC and intended to phone them again once back in his truck, what use if his truck was at a different place!

Which intentions of the dispatcher did he misunderstand? If you mean “we don’t need you to do that,” there was no misunderstanding, he wrote that in his statement. Now if you mean like what the idiots at the outhouse say, “let me know if he does anything else” means to follow, yeah, I’d say he “misunderstood” that (or they do).

But yes, I think having some kind of psychological evaluation for all of that would be important.

Because yeah, somethings wrong with him…I don’t know what his deal is.

The prosecution cannot require a suspect or a defendant to submit to psychological testing and evaluation unless defense counsel asserts a mental health defense, such as insanity or diminished capacity. In most, if not all jurisdictions, the defense is required to file a written notice of mental health defense at the arraignment or within a specific time period after the arraignment, such as 10 days.

After the notice is filed, the defense must disclose the results of any testing, evaluations or reports to the prosecution.

The prosecution’s expert reviews the information, meets with the defendant, and issues her report.

The prosecutor and defense counsel then meet to see if they can agree to a resolution of the case.

The prosecution cannot require a suspect or a defendant to submit to psychological testing and evaluation unless defense counsel asserts a mental health defense, such as insanity or diminished capacity.

Thanks for the response. Makes sense. Jodi Arias alleges PTSD and battered woman syndrome in her claim of self-defense and forgetting that she stabbed Alexander and cut his throat. OTOH, GZ is plainly lying about not remembering the name of the street as his reason for getting out, and staying out of his truck, then blaming it on being ADHD.

Maybe O’Mara realizes that GZ’s NEN call refutes GZ’s statements for why he got out of his truck, so there’s no need to prove that having ADHD would effect his memory — because it doesn’t.

The prosecution cannot require a suspect or a defendant to submit to psychological testing and evaluation unless defense counsel asserts a mental health defense, such as insanity or diminished capacity

-He was deemed fit to carry a gun
-He was capable of lying to achieve his nefarious goals
–a)Make Trayvon out to be a dangerous criminal on the NEN call
–b)Defy NEN and continue to chase Trayvon under the guis of looking for an address
-He is capable of lying to maintain his self image
–a)He told his co-workers he was the victim of an attempted mugging leading him to shoot someone and thereby, which sounds much better than chasing an unarmed, lawful, 17 year old minding their own business.
–b)He lied and said he had graduated from his program
–c)He lied and told the detectives his criminal record was squeaky clean

His lies are evidence that he is perfectly capable of assessing yours and my reality, he just happens to not give a fuck about the rules of society and basic morality, classic sociopath. I am definitely not seeing a diminished capacity of any legal significance.

What would they be treating exactly? His racism? his delusions of grandeur? his callousness? his coldness of heart? his lack of respect for the rights of other individuals to walk on the street in peace?

*) He’s still trying to get her to flip on Fogen in exchange for a dropped charge.
*) He thinks evidence surfacing at Fogen trial will help her.
*) He knows she’s gonna go for a plea deal, but her Fogen trial testimony needs to be nailed down first.
*) He’s already got a plea in place for her, but they don’t want her guilty deal to jeopardize Fogen’s chance for acquital.
* ) He’s got a delusional client who thinks it’ll all go away once Fogen is acquitted and they ride off tin the sunset to their anticipated “great life.”
*) He’s got a realistic client who wants to spend every cuddly second with Fogen in the run-up to June 10 without the aggravation of considering her own legal woes.
*) He just plain doesn’t want to move further with proceedings until after Fogen’s mess gets spilled at trial for all to see.
*) He’s got a swell summer vacation planned.

Shellie might reveal more about what O’Mara knew about the money and the passport.

Based on the jailhouse phone calls, I don’t think ShelLIE talked to O’Mara about the money. She did know about the passport, however. Also, because GZ is a liar who justifies his lies, we can’t believe what he said about O’Mara knowing about $37,000.

What I DO question regarding O’Mara, is why he did not file application with the court THEN to find GZ indigent IF he truly believed that GZ had no money.

“1: 48 : 16
BD – Mr. Z never claimed that he chased, or ran after Mr. Martin, is that correct? (no) BUT you still have a witness who describes someone chasing another person from the area near where they ended up, in other words, from the area where Mr. Martin lived to the area where the MURDER happened.

@Lonnie Starr. Thanks for the transcript. Either I didn’t listen long enough or misunderstood it, so thanks for the correction. Looks like it’s time to do another compilation video of statements made in court. 🙂

Many people listened to that bond hearing, but at the time we lacked theories that would make BDLR’s statements seem much more than just wishful thinking. Few theories were even developed that far along to where the final minutes were high on the screen. Mainly, since this was a bond hearing, the focus was on what the bail would be. The discussion then moved on to what the bail amount meant and whether GZ would be able to make it. Next, before things could even gel in place, here comes the blockbuster revelation that GZ had lied and had raised nearly a quarter million dollars via the web.

So, there was a lot going on that knocked BDLR’s Gilbreath exam off the scope.

Let me take this opportunity to reinforce what I’ve been saying for so long: Without a theory of some kind to weigh evidence against, evidence is meaningless and it’s import is likely to be lost. Since we didn’t know about GPS and had no theories about how widely available it was or was not, we simply dismissed Gilbreath’s statements as wishful thinking, because we believed, if it was true, we should have already known about it.

But think about it. Det. Gilbreath is FDLE, not SPD, so he would not report to Serino. So there isn’t a way we would hear about any of this, except at the bond hearing, since the SP is under no compulsion to speak and MOM is under no compulsion to release any discovery he gets. He could very well already have the gps data.

The other thing is illustrative of why trolls are so devastating. By forcing the shut down of developing lines of thinking, to focus on them and their trivial fare, we lose the chance to come upon things that an avid discussion would eventually lead to.

It’s not so important that everyone on a thread have everything right. We correct wrongs as we come to them an move on. But, not so fast, remember that some of our greatest discoveries came about via error. So, one man’s error is another man’s provocative thought. Trolls rob us of all of it by focusing the thread on useless trivia and emotional replies, rejoinders and loss of interest and focus.

@Lonnie Starr. Totally agree. When the first bond hearing was held, I was not blogging. I did lurk on some comment boards and read online news. The focus was on GZ’s purported “apology.” Zidiots postured Gilbreath’s testimony as a win for the defense. Such misleading — it caused me to watch the hearing and I saw O’Mara try to take Gilbreath down the wrong path by asking if there’s evidence of who threw the first punch. That does not apply to SYG.

I’ve had need to watch that hearing several times, and since our last communication on it, even again.

@Xena: The copy I have up on my evidence pile has very poor sound quality. If you come across a better copy, please don’t hesitate to let me know. I have to practically wear the speakers on my ears to hear the thing. —Hopefully yours

Yes, my friend, he was attempting to conceal the amounts by dropping the zeros, but the coded quantities were very real.

GZ tells Scott that O’Mara knows about the website support, and that O’Mara wants to talk to Scott about that and had already talked to Scott about it. Scott affirms that.

O’Mara tells GZ that he may get the court to declare GZ indigent, but GZ tells O’Mara that it may not be possible because of a failed attempt to transfer the “$37”, and O’Mara responds, in essence, that since ‘GZ is not working, is not providing an income for his family and is probably unemployable for the rest of his life the court should, hopefully, declare GZ indigent.’

I’d still use the $37K issue against the defense, if they want to go there because Omara will either have to admit that Fogen is not credible and a pathological liar to save himself from trouble, or Omara will have to own up to it, and either one is a W for the team

MMPat, you are on a roll tonight … Suggested title for his autobiography/memoir, written from the can: The Book of Moron. .

@
well thats perfect as his suporters an he himself professed the Hand of God in his survivial an Trayvons death.
There out to crusify a decent sqeaky clean Merican patriotic hero.
A Meseianic cult almost as if he were a latter day Joseph Smith .
So the Book Of Moron is just about right.
Can even declare himself as tax except as a legitimite religion.

Prof: would it be possible by the prosecution during trial to have two individuals reconstruct the scene that GZ states happened during the altercation with TM in court? To me, it would indicate to the jury that either what GZ says is true or is just another lie. As someone educated in science, I would find this very interesting. I would think that what GZ states happened could be shown by the demonstration could not happen. Just an observation.

Difficult but not impossible to do. The key requirement is that the reconstruction must exactly reproduce what happened with no opportunity for interpretation or variation by the participants.

Exactly reproducing a physical struggle would be virtually impossible, although it may be possible to start the reconstruction with the defendant lying on his back and have him demonstrate how he pulled the gun and fired it.

I doubt we will see this happen because it’s risky and the prosecution doesn’t need it.If the defense asks for a reconstruction, I think they will object to it on the ground that the fight cannot be exactly reproduced and Judge Nelson will sustain the objection.

I remember some question like that during the Caylee trial, where decomp air samples were contained in tins. Discussion, don’t know if it was right or not, was that jury members were not allowed to be witnesses and that’s what they would be doing if they were to make a decision on what the smell was in the cans, thus the cans were never opened for the jury to witness themselves.

“…he may suffer from some kind of organic brain disorder that may affect perception and functioning.”

I’ve stated to this effect (in different words for sure) that is is the root of the problem. I believe I used lay mans terms like “..he’s a mental midget..” & “..he’s delusional..” however, if was playing with a full deck. Trayvon would be alive most importantly & Fogen wouldn’t be facing a looooooooong prison spell.

There is no doubt Robbie the Racist is a few sandwiches short of a picnic. For the life of me, I can’t imagine spouting this crap in public and acting like he’s the normal one. The same with Fogen, and add Moron O’ Mara to the mix.

I think GZ has a personality disorder, which he may have been vulnerable to by genetic tendency, but resulted primarily from his (mis)treatment by his parents (and/or other authority figures) when he was quite young. Seriously, I don’t know why someone hasn’t looked into whether any of the priests in the parishes where he was an alter boy have been accused of pedophilia. IANAL, of course, but AFAIK personality disorders do not ‘count’ toward ‘not guilty by virtue of mental disease or defect’ defenses, otherwise 75% of the felons now locked up in prison would out walking the streets.

Agree on the personality disorder. But just because he was never elected Prom King or Mr. Congeniality back in Virginia (and is still feeling put out about it) isn’t enough to justify most of the scrapes he’s been in since high school. Gladazz and Boobles Sr. should have stopped bailing him out of trouble much, much earlier and insisted he get go off to rehab for whatever ails him.

but AFAIK personality disorders do not ‘count’ toward ‘not guilty by virtue of mental disease or defect’ defenses,…

Interesting. Here, any clinically recognised mental disorder, counts in as much as it is for the Prosecutor to decide with the help of psychiatrists, etc. whether the disorder is serious enough and whether in the public interest to prosecute or to remit to a mental institution, treatment, or whatever appropriate. Only 10 years ago a man convicted of killing a TV presenter had his conviction overturned and a retrial resulting in a finding of innocence because the prosecution had not given enough weight to the alleged killer’s personality disorders and low IQ.

@whonoze
Forgot to add… tough for him I’m sure but I don’t think GZ would qualify here for getting off via mental plea because he may not be the brightest of the bunch but he is still too clever and too calculating as shown by his lies.

I don’t know if you guys have noticed, but one of the few opinions of his own unitron will clearly state is his absolute contempt for TCTH. He’s no ‘zidiot’. He’s frustrating from time to time, but so is everyone (except Blushed Brown who seems to have left us due to getting a Real Life). I do not consider unitron’s contributions to be torment. I do find the squabbles people get into with uni tp be a waste of bandwidth, generally.

There is no denying that Z “has issues” as the kids say. The cousin who accuses him of molestation, I believe, said that his mom was overly punitive and the dad refused to intervene. Even Jr. talks about mom and dad’s worlds being different. He was only implying cultural differences, but it looks to me as if tossing this whole salad together (do all the kids have the same two parents/) and lubricating liberally with alcohol then you meet the textbook definition of dysfunctional family.

Adults don’t come out of that symptom-free, and denial is a chief survival skill. It’s also a killer in terms of emotional growth and maturity.

All that said, I suspect that even a full work-up would come short of identifying anything that might full under the legal classification of either unable to understand/assist in defense or unable to distinguish between right and wrong or control impuses.

It would be terrific if sentencing could include mandatory treatment while in jail. But our system doesn’t really do that sort of thing very well.

He’s clearly getting some sort of help since he does take meds for ADHD. I hope he’ll continue to get help and sometime in the future, come to terms with his poor judgment and admit to it.

I think my biggest problem with Fogen outside of his killing Trayvon when he had so many other options, is that damn Hannity interview. I sat there not believing the stuff coming out of his mouth. He’s delusional enough to think what he was saying would somehow prove he acted in self-defense.

I don’t think any work-up now could identify anything that would fall either under the legal classification of “unable to understand/assist in his own defense” or “unable to distinguish between right and wrong or control impulses.”

For one thing, O’Mara has already put it in writing several times that Fogen IS assisting in his own defense. That one’s gone.

For another, a personality disorder does not affect guilt or innocence. A person with a personality disorder is SANE. He is not PSYCHOTIC or out of touch with reality. He knows what the reality is; he just has a particular personality that is not what psychiatrists would say is “normal” and in fact, some of the most criminal people, psychopaths among them, have clearly identifiable personality disorders such as “antisocial personality disorder” or “narcissistic personality disorder.” If you were to start excusing criminal behavior based on a personality disorder, your serial murderers would all qualify, and most of your mass murderers as well.

Then you get to I.Q. That doesn’t necessarily affect guilt or innocence if the person knows enough to understand the difference between “dead” and “alive.” What it DOES DO is, in some rare cases, prevent the death penalty from being applied. Although in Florida, a man like Martin Grossman with an I.Q. hovering around 70 and serious mental problems can still be executed (as was Martin Grossman, after 25 years on death row, in about 2011 I believe).

I believe Fogen showed that he knew the difference between right and wrong. He called Trayvon Martin “the suspect” in his written statement to the police after killing him. His position was simply that it was RIGHT for him to kill Trayvon Martin, because Trayvon Martin was WRONG. The law did not say that, of course, but Fogen gave all his reasons for thinking it:

“He looks like he’s up to no good”
“He looks like he’s on drugs or somepin”
“Yup; he’s comin’ to check me out”
“These assholes, they always get away”
“Fucking [punks][coons][whatever]”
“I don’t know what his deal is”

Fogen KNOWS the difference between right and wrong. He just wants everybody to say HE’S right and everyone opposing him (or refusing to give him his “props”) is WRONG.

you seriously cant make this stuff up, just saw on another forum the claim that fogen should be suing bill lee the former police chief, the guy that refused to arrest and charge him, the guy that LIED in public in support of fogen…..

what on earth could he possibly claim that caused him any loss done by bill lee?

You got to understand that the Fogens are the type of people who will never admit wrong or tell the truth, no matter what, and rather blame everyone else and show no remorse than to move forward like a real human being

Even an 18 year old white kid who did a hate crime, at least had the decency to own up to what he did, admit to it, and apologize to the family during trial

Dont expect that from Fogen or his gang members as they will spin fairy tale conspiracies and blame everyone else except the guy who actually killed a kid and attacked someone

Professor — Seems to me they could consult until the cows come home and the main result would be:
1) A ton of money would be spent on experts’ fees, mostly for nothing.
2) None of the experts would produce revelations that would trump common sense for a jury.
3) O’Mara would at least be able to cover himself by saying he tried to generate a strengthened defense by consulting — even if the experts failed to come up with anything worthy.

Maybe O’Mara’s saving what funding is available for a jury consultant? His best hope, it would seem, might be to get a closet racist woven in among the six.

I have made a composite that shows the (more or less) complete image of W13′s photo of GZ’s bloody head, w/o the banner and logo, taken from still frame exports of a tilt-up over the photo in an ABC news clip, downloaded from the ABC website.

I am convinced BRD that this photo has been edited by ABC to cover GZ’s left hand area, and to obscure something that is lying on the ground just in front of his left knee.

willis has determined BRD that in this photo GZ is kneeling or squatting over the exact area on the dog walk where the brown plastic bag from 7-11 was found and photographed by the SPD.

I can’t embed stills here, so you’ll have to go here to see the composite and the detail insert of the suspicious area.

Check the photos from the SPD. Yes, there’s a horizontal cut on the back of his head. It’s not very wide. It appears to have been closed by two sutres. In the W13 photo it looks like there’s a long shallow horizontal cut from which blood is flowing down, but that would seem to be an illusion. The blood seems actually to have flowed sideways in both directions from that small cut — mainly to the left and just a wee bit to the right — and then started dripping down. The changing directions, I would assume, being the effects of gravity on the different positions his head was in as he bled. Just more evidence indicating GZ was over Trayvon, face down, not on his back face up, as the blood came out of his head owwies.

@Kelly Payne
Kelly, click youtube link and skip to frame at 5:41 of the video and you will see not one but two small very fine horizontal cuts in line with each other and starting near the centre left going outwards. The cut nearest to the centre of his head joins with the abrasion that is seen clearly on the SPD back views.

These two cuts with the abrasion correspond to the line of blood which because of noticeable ridges on GZ’s skull most likely caused the blood to pool a little before overflowing and cascading down creating what looks like a continuous cut.

(I haven’t embedded the video due to the author but I don’t know where else to find the SPD top of the head photos as they are not on axiomamnesia my main source).

hmmm i’m confused by the photo now…it looks like the path is not running top of photo to bottom (it looks like the path ends at the bottom), but there is no path to the right either, it’s just grass. So are my eyes wrong and the path is running all the way down to the bottom of the photo? To me it looks like the concrete area is a corner, but don’t know of one at the crime scene.

Whonoze, I checked over at your site after looking at the photos. The argument, that he squats at the same spot as the bag in the crime scene photo does not convince me at all. There are a lot of concrete tiles along the way and the all have joint sections. Although Willis shoulder studies puzzled me in this context.

The bag at the same spot seems to be the result of the idea that he tampered even more with evidence than just dropping the little flashlight exactly were he allegedly was floored out of the blue.

Jo, that’s exactly how I saw it in these photos by willis. He is more concerned about studying the position and the shoulders at that point, But that’s exactly what caught my attention too. I don’t remember ever having seen it that way.before. I saw it as you suggest.

Not that it matters, though. But it’s definitively puzzling. One looses orientation once one starts to concentrate on that.

Who takes a photo of the back of someone’s head while they are on their phone. Someone who has been asked to do it. And why there? Coincidence at the spot with the bag, or purposefully at the spot with the bag. Was the bag picked up and dropped closer to the T? Possible, and then documented by the neighbor with his camera as the killer posed, adding evidence about the place he says he encountered Trayvon.

That could be one reason, seemingly innocent documentation while photographing the head blood.

The keychain flashlight could easily have been left on at the T area to mark the spot for return, or it could have been tossed after the shooting, from this photo position.

These phone photos were withheld from police for a time, weren’t they?

Looked at a copy of the abc puslshed version from abc. One thing that stries me as odd is the bright left ear area, not that is’t bright so much, but the shadowing to enhance the side of the head.

Looks to me as if a shadow has been brushed along that edge (notice the slight irregular shape and brush edges, as if transparency was added in the shadow along the left side and also along the top right).

Gives the head volume and softens what would be strongly lit by the bright flash at short distance.

The light white line shaped like a tilted ‘7’ at the bottom of the left ear and down the jaw, is not natural looking. There is something strange about that whole area, and if ABC were just blocking out the banner area in general, the black patch on the left side, would be much larger.

Could fogen have had something in his hand? A second phone perhaps, still holding the gun? (two versions of his story, his gun was still in his left hand, and his gun was put away in his holster. Witness with the phone didn’t say he saw a gun in his hand. Something else?